Common Law Nuisance and Tort Claims

Comer v. Murphy Oil USA, Inc. (S.D. Miss. Aug. 30, 2007).

A group of Gulf Coast property owners filed a lawsuit against energy companies for their contributions to climate change, which the plaintiffs claimed contributed to the intensity of Hurricane Katrina. The plaintiffs sought damages under the tort theories of unjust enrichment, civil conspiracy and aiding and abetting, public and private nuisance, trespass, negligence, and fraudulent misrepresentation and concealment.

The defendants were granted their motion to dismiss, because the court found that the plaintiffs did not have standing and raised non-justiciable questions according to the political question doctrine. The standing decision was based on the Court’s determination that the harm was not traceable to individual defendants. The Court’s finding of a non-justiciable question was based on the Court’s determination that more guidance from the executive and legislative branches was necessary in order for the court to create a culpability standard. The Court also dismissed claims against parties who did not join the motion to dismiss sua sponte, or without provocation from a party before the court, due to the plaintiffs’ lack of standing.

Procedural History: The plaintiffs thereafter filed an appeal with the Fifth Circuit Court of Appeals, which reversed the district court in part in 2009. The reversal was vacated when the Fifth Circuit agreed to rehear the appeal en banc. Before the rehearing, however, the appellate court lost its quorum and appellate rules required its dismissal. Because the Fifth Circuit’s opinion had already been vacated, the 2007 district court dismissal was reinstated. When the Supreme Court denied the plaintiffs’ request for a writ of mandamus, they filed Comer II in 2011.See below for case outcome.

The same court that dismissed Comer I dismissed Comer II on procedural grounds, holding that the doctrines of res judicata and collateral estoppel bar claims for trespass, nuisance, and negligence against oil, coal, electric, and chemical companies for damages allegedly stemming from Hurricane Katrina. The lawsuit alleged that the companies’ activities amounted to the largest sources of GHG emissions and that climate change led to high sea temperatures and sea level rise that fueled the hurricane, which in turn damaged their property. The court held that the lawsuit was nearly identical to lawsuit the individuals had filed in 2005. The court also found that the plaintiffs lacked standing because their claims were not fairly traceable to the companies’ conduct, that the lawsuit presented a non-justiciable political question, that all of the claims were preempted by the Clean Air Act, that the claims were barred by the applicable statute of limitations, and that the plaintiffs could not demonstrate that their injuries were proximately caused by the companies’ conduct. In the 2005 lawsuit, the district court granted defendants’ motion to dismiss. On appeal, a panel of the Fifth Circuit partially reversed, holding that plaintiffs had standing to assert their public and private nuisance, trespass, and negligence claims, and that none of these claims presented nonjusticiable political questions. The Fifth Circuit subsequently granted a motion for en banc review, but then because of a loss of quorum, the court dismissed the en banc review, which had the effect of reinstating the district court decision dismissing the case. The plaintiffs appealed for a writ of mandamus to the U.S. Supreme Court, which was denied.

Kivalina v. ExxonMobil Corp., et al. (2008)

The Kivalina complaint was filed February 26, 2008 by the native Inupiat village of Kivalina and is currently being litigated. The complaint alleges that defendant energy and electric producers’ actions released carbon dioxide, which fueled the effects that climate change is having on the village. Kivalina is a village of approximately 400 people located on the tip of a barrier reef about 70 miles above the Arctic Circle in Alaska. The village must be relocated because the melting of ice which formerly acted as a wave barrier. Without this barrier, the village is beginning to fall into the ocean. Both the U.S. Army Corp of Engineers and the U.S. Government Accountability Office concluded that the ancestral home of the Inupiat must be relocated at an estimated cost of $95 million to $400 million.

First, the complaint states claims of public and private nuisance under federal and, in the alternative, state law. A nuisance occurs when a defendant unreasonably or substantially interferes with the enjoyment of one’s property. Nuisance claims have been rejected by all previous courts in the climate change context. The main problem with a nuisance claim for climate change damages has been showing that individual polluters’ emissions were the proximate cause of the plaintiffs’ harm and to what degree that harm was increased due to the defendant’s emissions. These causation questions also trigger separation of powers issues as well.

The plaintiffs hope to avoid these causation issues through the additional claims of civil conspiracy and “concert of action.” These claims allow the plaintiff to hold multiple defendants joint and severally liable when it is impossible to determine which defendant is responsible for the individual harm. The complaint claims the defendants “conspired to create false scientific debate about global warming in order to deceive the public.” Methods mentioned in the filing include the using front groups, purchasing and authoring misleading advertising, funding critics of questionable expertise, denying the scientific community’s current views, and denying the effects of climate change on the Arctic. The complaint also states that the defendants engaged in these activities despite the fact they “knew or should have known of the impacts of their emissions on global warming and on particularly vulnerable communities such as coastal Alaskan villages.” The complaint alleges that profits and the ability to continue to profit without addressing climate change were placed above the need to prevent harm.

In order for the village to prove a civil conspiracy and concert of action, the plaintiffs are using a strategy similar to that of state governments against the tobacco companies. States in those suits used concert of action and civil conspiracy theories based upon fraud claims based on both common law and statutory law. Civil conspiracy only requires that two or more persons enter into an agreement to commit a wrongful act that results in harm. Here the plaintiffs claim that the defendant corporations agreed to perpetuate a misinformation campaign on the public, which resulted in harm to the plaintiffs and the public.

A concert of action can occur in three ways. The first requires a defendant to commit a tortious act in concert with another or pursuant to a common design. The second occurs when the defendant knows that the other's conduct constitutes a breach of a duty and gives substantial assistance or encouragement to conduct the breach. The third way of committing a concert of action tort occurs when one gives substantial assistance to another in accomplishing a tortious result and its own conduct, separately considered, constitutes a breach of duty to the third person. In this instance the plaintiffs claim that the defendants acted in concert to provide misleading and false information so as to continue to cause the nuisance, global warming.

Background: This case was originally filed on February 26, 2008 (see case above).

On September 21, 2012, the Ninth Circuit unanimously affirmed the Federal District Court’s decision to dismiss the lawsuit. In doing so, it held that federal courts are blocked from providing judicial relief in this area because when there is a federal statute that speaks directly to the issue posited by the federal common-law, (I.e. the Clean Air Act), courts must find that the federal common law has been displaced by that statute. In his decision, Judge Sidney Thomas relied heavily on the U.S. Supreme Court’s decision in American Electric Power Co. that “Congress has directly addressed the issue of domestic greenhouse gas emissions from stationary sources and has therefore displaced federal common law.” In essence, the Ninth Circuit concluded that the regulation of greenhouse gas emissions via a federal statute (Clean Air Act) extinguished Kivalina’s federal common law public nuisance damages and abatement actions.

Significance: With the Supreme Court’s decision in American Electric Power Co., (AEP) the ability to successfully bring a common law nuisance suit associated with damage from greenhouse gas emissions was effectively curtailed. While the AEP decision focused only on claims for injunctive relief under the federal common law of public nuisance in the context of climate change, the decision in Kivilina uses the same theory of displacement to extend the bar to cases seeking monetary damages. Now, the only possible basis for other common law nuisance suits would be state common law.

Status: In March 2013, The Kivalina village filed a petition for a writ of certiori with the U.S. Supreme Court.

American Electric Power Co. v. Connecticut (2009)

Background

In 2004, eight states (California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin) and New York City filed a complaint against the five largest emitters of carbon dioxide in the United States (American Electric Power, Southern Company, TVA, Xcel Energy and Cinergy Corp.) in the District Court of New York. Their complaint sought “abatement of the defendants’ ongoing contributions to a public nuisance.” The complaint relied on reports from the Intergovernmental Panel on Climate Change and the U.S. National Academy of Sciences to support the causal link between increased greenhouse gas emissions and global warming. It listed current injuries from climate change, for example, flooding in California from earlier melting of snowpack, and expected future injuries if emissions were not abated. The relief sought by the plaintiffs included requiring the defendants to cap their carbon dioxide emissions and to reduce them over time. A similar complaint was filed by three land trusts (Open Space Institute, Open Space Conservancy, and Audubon Society of New Hampshire).

The District Court dismissed the compliant ruling that the case raised a “non-justiciable political question” – an issue not well suited for the court’s to decide. It ruled that the questions raised in the complaint involved balancing the costs of reducing greenhouse gas emissions, the benefits from such actions, and the foreign policy implications and that balancing such interests required an “initial policy determination” that should first be made by another branch of government (Congress or the Executive Branch) that is better suited to such deliberations.

Second Circuit Court’s Decision

On appeal, the 2nd Circuit Court rejected the District Court’s claim that the case presented a political question better addressed by another branch of government. It stated, “Well settled principles of tort and public nuisance law provide appropriate guidance to the district court in assessing plaintiffs’ claims and that the federal courts are competent to deal with these issues.” It goes on to say that simply because a matter has political ramification, this is not a reason by itself for restricting action by the courts. The 2nd Circuit’s decision also looks at whether Congress has already spoken to the issue of limiting global warming and therefore has displaced any common law basis for action. After reviewing existing statutes, including the Clean Air Act (CAA), it concluded that no such displacement has yet occurred. Finally, the 2nd Circuit Court’s decision goes on to address the issue of standing and determined that the states do have a legitimate interest in protecting their natural resources and the health of their citizens and that the redress sought by the plaintiffs would reduce the harm alleged. The decision concludes by quoting from a water pollution case decided by the Supreme Court (Illinois v. Milwaukee, 406 U.S. 91 (1972) and applying it to greenhouse gas emissions: “It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance by greenhouse gases.” The defendants may appeal the 2nd Circuit’s decision or the case will be returned to the District Court and heard on its merits.

The Supreme Court “granted certiorari”—chose to hear—oral arguments challenging the ruling by the 2nd Circuit Court of Appeals in Connecticut v. AEP (see above). The suit brought by eight states and New York City (along with three land trusts) sought to use the federal common law of nuisance as grounds for obtaining reductions in carbon dioxide emissions from the utilities named in the suit. The District Court had dismissed the case on the grounds that the claim presented a “political question” that could more appropriately be addressed by another branch of government. The Second Circuit’s decision ruled that the claims do not fall within the political question exclusion and that the plaintiffs had standing to bring the case. The appeals court decision vacated the lower court’s decision and sent the case back to the District Court for further proceedings.

The case came to the Supreme Court through a petition for a writ of certiorari, which was filed by the defendant electricity producers. The Court granted the petition “without limitation.” This grant allows the Court to hear three questions that were posed by the petitioners. The questions in the petitioner’s writ were, first, whether the plaintiffs lack standing to sue; second, whether the Clean Air Act displaces the federal common law of nuisance; third, whether the claim is a political question that should be dismissed.

The U.S. Supreme Court was asked to decide whether a party can assert a federal common law nuisance claim against a company’s carbon dioxide emissions. In a unanimous (8-0) decision, the U.S. Supreme Court ruled that plaintiffs could not invoke a federal common law public nuisance claim against the electric power companies. Building on their 2007 decision in Massachusetts v. EPA, the Court held that in passing the Clean Air Act, Congress had authorized federal regulation of greenhouse gas emissions and in doing so had effectively “occupied the field” thereby displacing any common law claims. The Court described EPA as being far better positioned than any federal judge to develop emission control requirements to limit greenhouse gas emissions. Importantly, the Court also made clear that any action taken pursuant to the Clean Air Act by EPA concerning greenhouse gas regulations would be subject to judicial review, clarifying that such challenges are appropriately brought under the Clean Air Act and not as federal common law nuisance claims. The Court remanded the case to the United States Court of Appeals for the Second Circuit to consider whether the Clean Air Act also displaces the plaintiffs’ claims under state nuisance law.

Conclusions: Litigation against the harmful effects of climate change and GHG emissions cannot rely on the federal common law of nuisance because it has been displaced by the Clean Air Act.

Implications: This case effectively marks the end of the federal common law of public nuisance in the climate change litigation context. Specifically, the Court’s decision appears certain to lead to the dismissal of claims in which plaintiffs have invoked federal nuisance law to pursue relief for climate change-related harms. Furthermore, because the eight Justices were equally divided on jurisdictional issues, the Court’s decision left in place the Second Circuit’s holdings that plaintiffs had standing to assert climate change injuries in federal court, and that such claims are not “political questions,” meaning they are justiciable. Unless Congress intervenes to take away EPA’s authority to regulate greenhouse gas emissions under the CAA, the Supreme Court has barred the door for future federal common law nuisance claims.

California sued six automakers and claimed that the companies’ greenhouse gas emissions contributed to climate change which amounted to a public nuisance under federal common law and, alternatively, public nuisance under California law. The state sought joint and several liability against the automakers for “creating, contributing to, and maintaining a public nuisance.” The plaintiffs requested monetary damages, attorney’s fees, and declaratory judgment for future expenses and damages caused to California by climate change.

The defendants replied by seeking to dismiss the case on four grounds: (1) the case raises nonjusticiable issues; (2) the complaint fails to state a valid claim under federal common law; (3) the complaint fails to state a valid claim under California law; and (4) the California public nuisance claim is preempted by federal law. The court found the “threshold issue” to be whether the claim raises a nonjusticiable political question outside of the court’s jurisdiction.

Nonjusticiable or political questions are those that are better answered by the legislative or the executive branches due to concerns with a court’s ability to identify the duty, the breach of the duty, or a remedy necessary to protect the right in question. These cases touch on questions of public policy, foreign policy, and political issues that are deemed inappropriate for courts by the Constitution. If a decision requires the court to create law in a way that too closely resembles legislating or carry out laws in a way that overly infringes on the discretion of the executive, the court refrains from reaching a decision on the issue due to a lack of jurisdiction.

The court cited the six formulations which indicate the existence of nonjusticiability from Baker v. Carr. A finding of any one of these formulations results in a nonjusticiability determination. The court found overlap among the indicators, but ultimately found the third indicator, “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion,” to be the most relevant. The court referred to Connecticut v. AEP and cited the case throughout its analysis. The court ultimately concluded that balancing “the competing interests of reducing global warming emissions and the interests of advancing and preserving economic and industrial development” is a “policy determination to be made by the political branches.” The Court also cited the political branches’ actions and inactions as well as comprehensive legislative schemes under the Clean Air Act and Energy Policy and Conservation Act as further support for a finding of nonjudicial discretion in reference to the federal common law nuisance claim.

The court distinguished the case from Massachusetts v. EPA. First, the court noted that the Supreme Court allowed standing based on the “notion that certain constitutional principles of sovereignty afford the States ‘special solitude’ to seek judicial review of decisions by federal regulatory agencies because the States have ‘surrendered’ to the government their right to engage in certain forms of regulations.” Second, the Court noted that the Supreme Court determined that the federal government through the EPA has the authority to regulate carbon dioxide. Accordingly, the court reasoned that the Supreme Court allowed standing in Mass. v. EPA so that the state could challenge a policy determination as a “procedural right” to challenge an EPA administrative decision as opposed to an action in tort against private parties. Because this case was filed against private parties, Mass. v. EPA does not offer such a procedural right for standing in this case.

The court also found two other formulations from Baker v. Carr that were relevant to a finding of a non-justiciable political question. For its second nonjusticiable federal question determination, the court analyzed the formulation which requires the court to determine “whether the issues before the court implicate a textually demonstrable constitutional commitment to the political branches of government.” The court determined that the textual commitments of interstate commerce and the foreign policy to the political branches were implicated by the plaintiff’s attempt to compel damages from the defendants’ lawful worldwide sales. Potential commerce implications could result from greenhouse gas emitters being subject to a “judicially-created tort for doing nothing more than lawfully engaging in their respective spheres of commerce with those States.” Foreign policy implications arose from the political branches weighing in on the issue and deciding to refrain from any unilateral commitment to reducing emissions. Because of this deliberate inaction, the court reasoned that imposing damages on emissions would result in a conflict with the political branches constitutional commitment to foreign policy issues. For these additional reasons, the federal common law global warming nuisance tort is a nonjusticiable political question.

The court’s final Baker v. Carr indicator requires a court to decide “whether there are judicially discoverable or manageable standards available to resolve the question before it.” The court found that determining what is “an unreasonable contribution to the sum of carbon dioxide in the Earth’s atmosphere, or determining who should bear the costs” would require a policy decision due to a lack of an existing “legal framework or applicable standards.” Because of this indicator and the two discussed above, the court found a nonjusticiable political question and granted the motion to dismiss the federal common law global warming nuisance claim.

The court also distinguished previous transboundary nuisance cases on grounds that the remedies sought were to enjoin the nuisance rather than monetary damages, and that there is no guidance for assessing plaintiff’s contribution to warming.

The court did not reach a conclusion as to whether a federal common law nuisance claim exists due to the finding of a nonjusticiable federal question. The court also found the state public nuisance claim to be precluded from jurisdiction because the nonjusticiability finding left the plaintiffs without a sufficiently substantial federal claim necessary to exercise supplemental jurisdiction over state law claims. The plaintiffs have filed an appeal with the Ninth Circuit Court of Appeals.